The Courts : Workalic - Brief Article

There are 62 unfilled vacancies on the federal bench, and according to many observers this fact is a stinging indictment of our government. In August, President Clinton referred to "a mounting vacancy crisis in our country." Democratic senator Pat Leahy has described the insufficient supply of judges as a "constitutional crisis." In his annual reports on the state of the judiciary, Chief Justice William Rehnquist decries the delays in nominating and confirming federal judges. And now 56 current and former law-school deans have called for the vacancies to be filled quickly. The vacancies, they say, are "increasing caseloads in courts around the nation and affecting the lives of citizens whose cases wait in the federal courts."

There is a real constitutional crisis in America: the overweening power that federal judges have arrogated to themselves. The Supreme Court purports to "speak before all others" for our ideals; it settles many of the most important questions of our politics and claims a theoretically unlimited right to settle all of them. This being the case, the quality of our federal judges must take precedence over their quantity. Since all of President Clinton's judicial nominees share a grandiose, extra-legal view of judicial authority, none of them can responsibly be confirmed, even if there were a shortage of judges.

In fact, though, the "crisis" of an overworked judiciary is overblown. There were 97 vacancies at the end of 1992, but no cries of a judicial emergency; there were 63 at the end of 1994, when Clinton still had a Democratic Senate. The Supreme Court employs ever more clerks and hears ever fewer cases. The appellate courts are deciding more cases without issuing opinions. The chief judge of the Fourth Circuit has said that he is getting along nicely without any more judges; the Fifth Circuit has actually canceled some sittings, hardly a sign of a backbreaking burden. The federal circuit finds time for enough junkets that, in legal circles, it is called the "Bahamas circuit."

If the judges are in fact hearing too many cases, maybe the problem is not that there are too few judges, but that there are too many cases. Chief Justice Rehnquist rightly complains that Congress has given the courts unnecessary work by creating more and more federal crimes. But the federal courts have themselves to blame as well. The courts largely invented the sexual-harassment law that has generated 15,000 cases a year. The courts decided to get into the business of managing schools and prisons. They decided to manage the display of figures at city halls-to spend their time figuring out whether a Santa Claus is placed close enough to a nativity scene to neutralize the religious effect.

Nobody forced the courts to liberalize the law of standing to make it easier for people with no real claim of injury to bring lawsuits. For 20 years, the Supreme Court has said that individuals may file lawsuits to enforce many statutes that Congress never intended to be the subjects of litigation. The courts' hyperactivity in general encourages politically motivated lawsuits. And their refusal to lay down clear principles in many areas invites further cases to test just which racial preferences are acceptable, which restrictions are "undue burdens" on abortion rights, just how close to Santa that nativity scene has to be. Makework, not overwork, is the problem here, and the courts have the power to end it at any time.

The law-school deans do not believe that political struggles over the proper role of the judiciary should slow down the confirmation assembly line. They say they want to stop "politicizing the judicial-selection process." But that will be possible only when the courts' political role is brought within its proper constitutional dimensions. Not before.

COPYRIGHT 1999 National Review, Inc.
COPYRIGHT 2000 Gale Group